FE. THE JUDICIAL PROCESS TO DISMISS
FROM THE CLERICAL STATE
For the remainder of this document, we shall assume:
1. _ that we are dealing with a serious violation of canon 1395, §2 by
a cleric’s sexual abuse of a minor;
2. that, considering all the circumstances, there is good reason to
dismiss the accused from the clerical state;
3. that the bishop has issued an initiatory decree under canon 1718
to commence the judicial process.
Note that the judicial process may be commenced even though the ordi-
nary has already imposed a temporary expiatory penalty or even a censure
through an administrative process, and such penalties are still in effect.
1, General Norms (cc. 1400-1665, 1721-1728)
The judicial process is governed by the canons on trials in general and on
ordinary contentious trials, observing the special norms which refer to
cases involving the public good and the particular norms found in canons
1721-1728 (c. 1728, §1). While we shall give the general outline of such
a process, the individual canons must be consulted in detail to make
certain that the process is properly carried out. We shall comment only on
canons that may be especially significant for sexual misconduct cases or
that raise certain questions about the best way to proceed.
2. Initiatory Decree (c. 1718)
The bishop commences the judicial process pursuant to the preliminary
investigation by issuing a decree in accordance with canon 1718, §1. The
decree should state that, based on the sufficiency of the evidence collected,
the judicial process for imposing the penalty of dismissal from the clerical
state can be legally set in motion and is appropriate in the light of the
threefold pastoral goal of repairing scandal, restoring justice, ‘and reform-
ing the cleric.
Prior to issuing this decree it would be advisable for the bishop to consult
with two or more qualified canon lawyers concerning the presence of the
necessary requisites for bringing the accusation (including the timeliness
required by the statute of limitations), the prospects for a successful
prosecution of the case (including a consideration of the accused's imput-
ability), and the expediency under the circumstances of imposing a
22 The Judicial Process to Dismiss from the Clerical Statepermanent expiatory penalty (§3). As stated supra in regard to the
administrative penal process (Section E-1-a), itis also advisable for the
bishop to discuss the situation with the cleric in question if at all possible.
It will enable the bishop to discern more accurately the cleric’s particular
situation and the appropriateness of the judicial process.
3. Personnel
a. Promoter of Justice (cc. 1430-1436)
A promoter of justice is to be appointed in each diocese to intervene in
contentious cases in which the public good could be at stake and to
vindicate the public good in penal cases such as those involving dismissal
from the clerical state (c. 1430). The promoter of justice functions as the
prosecutor of a penal case. Like a plaintiff in a contentious case, he
brings the action, educes evidence, argues the case, and appeals if necessary.
If the office of promoter of justice is vacant or the promoter is otherwise
unavailable or inappropriate, may the diocesan bishop appoint someone to
serve as ad hoc promoter of justice? Yes (c. 1436, §2).
May the defender of the bond serve as the promoter of justice in a penal
case? Yes. There is no role for a defender in the case and therefore no
conflict of interest (c. 1436, §1).
Must the promoter be a priest? Canon 1435 states clearly that a lay
person may be appointed a promoter provided that the promoter is of
unimpaired reputation, possesses at least a licentiate in canon law, and is
noted for prudence and zeal for justice. On the other hand, canon 483, §2
requires that a notary, who is usually a lay person, must be a priest when
the case involves the reputation of a priest. The same requirement is not
made of the promoter. An argument could be made — inclusio unius,
exclusio alterius — that the omission of an express requirement about the
promoter in the face of the clear canonical requirement for the intervention
of the promoter in penal cases supports the conclusion that the promoter
need not be a priest. Still, in practice, it is probably more advisable for
both the promoter and the notary to be priests unless a particularly
knowledgeable and prudent deacon or lay person is available to serve as
promoter.
Is it permissible for the promoter of justice to have conducted or parti
pated significantly in the preliminary investigation? The 1917 Code
(c. 1945) contemplated consultation by the investigator with the promoter
of justice, thus implying that they were distinct individuals. A similar
The Judicial Process to Dismiss from the Clerical State 23statement is not found in the 1983 Code. There is no question that a judge
would be disqualified if he had participated in investigating the case.
Consequently, in order to protect his neutrality in the event of a judicial
process in which he may be involved, the judicial vicar should not be
involved in the preliminary investigation. But there seems to be no
canonical bar to the promoter’s fulfilling both roles.
The promoter’s principal duty is to seek justice. His concern is the public
good. He is not to prosecute if he decides that there is no basis for the
prosecution. (Canon 1724, §1 recognizes that the promoter may renounce
the instance even after the trial has commenced if the ordinary consents.)
The same disinterested approach should mark the acts of the preliminary
investigator. The parallel with most American civil jurisdictions confirms
this approach. Police conduct a preliminary investigation to establish
probable cause and make an arrest, but, with an arrest, the investigation is
quickly brought to the prosecutor’s office, which works with the police or
with its own investigators to build up the case without violating the rights
of the accused.
In canonical practice, it may be more judicious to have another diocesan
official conduct the preliminary investigation and only bring matters to the
attention of the promoter of justice when it is clear that a judicial process
is warranted and desirable. There is nothing, however, to prevent the
promoter from then carrying out a fuller investigation, particularly to
obtain additional evidence needed to prove the allegations and justify the
requested penalty.
b. Collegiate Tribunal (cc. 1419-1464)
How many judges should be appointed to hear the case? A collegiate
tribunal of three judges is required for penal cases in which dismissal
from the clerical state is a possibility (c. 1425, §1, 2°). If the case is
considered especially difficult, the bishop may entrust it to a collegiate
tribunal of five judges (c. 1426). Normally three should suffice.
Technically, there seems to be nothing to prevent the use of a single judge
in such a case since the permission of the episcopal conference according
to the provision of canon 1425, §4 has been granted without restriction
(November 1983). Since, however, the judicial imposition of a permanent
penalty will be a rather rare and extremely significant occurrence, the
diocesan bishop should seek, if at all possible, to make certain that the
tribunal is collegiate.
May the diocesan bishop serve as praeses of the collegiate tribunal? Yes,
24 The Judicial Process to Dismiss from the Clerical State